[gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH

Fri Apr 14 18:04:58 UTC 2017

Reg:   I think it a fundamental error to label trademarks as  restrictions on speech: they are source identifiers and, as such, they need to be protected so that consumers can rely on them to accurately indicate the source of goods or services (or the particular goods or services) they either trust or wish to avoid.

Actually, it seems to me that trademarks are no greater restrictions on speech than are the dictionary definitions of words that limit their meaning and use.  They may even be considered far less restrictive of speech than are definitions.

Michael R. Graham

From: gnso-rpm-wg-bounces at icann.org [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Reg Levy
Sent: Friday, April 14, 2017 10:34 AM
To: Marina Lewis <marina at dns-law.com>
Cc: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH

+1 Jeremy. It's a prior restriction on speech. Trademarks are a restriction on speech-one that may well be beneficial overall, but we must continue to be aware of this as we discuss extending those rights in the TLD space.

Reg Levy
VP Compliance + Policy | Minds + Machines Group Limited
C: +1-310-963-7135
S: RegLevy2

Current UTC offset: -7

On 14 Apr 2017, at 10:24, Marina Lewis <marina at dns-law.com<mailto:marina at dns-law.com>> wrote:

Jeremy,

Except that real life doesn't pan out like that.  In my experience as a trademark practitioner, my clients are not interested in gobbling up domain names for registration's sake - and absorbing the administrative and financial headaches that this entails.  Rather, most brand owners are primarily concerned with stopping the registration of domains names that genuinely cause confusion with consumers, or which pose a potential threat to consumer and public safety (e.g., phishing, malware, etc.).  A domain name registration along the lines you suggest below simply does not reflect that business reality.

That said, I am not so naïve to suppose that this never happens by a trademark owner acting in bad faith, but I am not aware of any evidence to suggest this is the norm.  Moreover, the greater threat are the instances where domain investors/resellers/scalpers (choose your preferred terminology) register domain names which they have no bona fide interest in using, apart from reselling it at a profit to a party interested in using it for legitimate purposes - aka, a brand owner.  This is exactly the type of "abuse" the TMCH was designed to prevent.

Marina

-----Original Message-----
From: gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org> [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Jeremy Malcolm
Sent: Friday, April 14, 2017 10:12 AM
To: gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
Subject: Re: [gnso-rpm-wg] A Brave New World Without Sunrises or the TMCH

On 13/4/17 8:47 pm, Greg Shatan wrote:

> However, I don't think number 2 qualifies as gaming or abuse -- except

> to the extent the trademark owner is being gamed or abused. Indeed,

> one of the failed assumptions of the New gTLD Program seems to have

> been that trademark owners would buy even more defensive registrations

> than they did.

So there's nothing wrong with a company that has a trademark for computers sunrise registering that trademark in a gTLD that relates to fruit on the strength of its computer trademark, locking out those who would actually use that domain name to sell fruit?  Sounds like abuse to me.

--

Jeremy Malcolm

Senior Global Policy Analyst

Electronic Frontier Foundation

https://eff.org<https://eff.org/>

jmalcolm at eff.org<mailto:jmalcolm at eff.org>

Tel: 415.436.9333 ext 161

:: Defending Your Rights in the Digital World ::

Public key: https://www.eff.org/files/2016/11/27/key_jmalcolm.txt

PGP fingerprint: 75D2 4C0D 35EA EA2F 8CA8 8F79 4911 EC4A EDDF 1122

_______________________________________________
gnso-rpm-wg mailing list
gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-rpm-wg/attachments/20170414/41f2aeb4/attachment.html>